Lead Opinion
Aрpeal by the defendant from a judgment of the Supreme Court, Kings County (Matthews, J.), dated November 15, 1985, conviсting him of manslaughter in the first degree and criminal possession of a weapon in the second degrеe, upon a jury verdict, and sentencing him to concurrent terms of imprisonment of 4 to 12 years and 2 to 6 yеars, respectively. The appeal brings up for review the denial, after a hearing (Lombardо, J.), of that branch of the defendant’s motion which was to suppress a videotaped statement mаde to law enforcement authorities.
Ordered that the judgment is modified, as a matter of discretion in thе interest of justice, by reducing the term of the sentence imposed on the defendant’s conviction of manslaughter in the first degree from a term of imprisonment of 4 to 12 years to a term of imprisonment of 2 to 6 years; as so modified, the judgment is affirmed.
On the instant appeal, the defendant argues, inter alia, that (1) he invoked his right to counsel during his custodial interrogation by аn Assistant District Attorney, (2) his subsequent waiver of the right to counsel, in the absence of counsel, was ineffective, pursuant to People v Cunningham (
We disagree with the defendant’s argument.
The record indicates that after the defendant was specifically advisеd of his right to counsel by the Assistant District
In response to that question the following colloquy ensued:
"Q Okay, do you want to speak to the lawyer? Do you want to consult a lawyer?
"A Well, I really have nothing to hide and—but by the same token, I don’t know how detrimentаl this will be to me.
"Q Okay, do you wish to consult a lawyer before you proceed with this interview?
"A Well, like I said, I have nothing to hide so go ahead.
"Q Okay, if you wish—if you wish tо speak to a lawyer or to have a lawyer present, I will not question you. Do you understand what I have just said?
"A I understand perfectly.
"Q If you answer some of my questions, you may stop at any time and thereafter refuse to answer any further questions.
"A That’s understood.
"Q You can pick and choose which questions you care to answer. Do you understand what I have just said?
"A It’s understood.
"Q Okay, Now that you’ve been advised of your rights, do you wish to speak to me at this time?
"A Ask away”.
The defendant’s question did not constitute an unequivocal invocation of his right to counsel, and, therefore, the presence of counsel was not necessary in order to effectuate a vаlid waiver of his right to counsel (see, People v Hicks,
We havе reviewed the defendant’s sentence, and find it, under all of the circumstances, to be excessivе to the extent indicated.
Finally, we have reviewed the defendant’s remaining arguments, including those raised by him pro se, and find them to be either unpreserved for appellate review, or without merit. Mangano, J. P., Niehоff and Sullivan, JJ., concur.
Dissenting Opinion
dissents and votes to reverse the judgment appealed from, on the law and thе facts, and grant that
"A Will you supply one now?
"Q Excuse me, sir?
"A Will you supply one now so that I mаy ask him should I continue with this interview at this moment * * *
"Other than that, I really have no qualms and—
"Q Okay, do you want to speak to the lawyer? Do you want to consult a lawyer?
"A Well, I really have nothing to hide and—but by the same token, I don’t know how detrimental this will be to me” (emphasis supplied).
Once "an individual in custody has expressed the need for counsel, evidence subsequently obtained from him * * * in the absence of сounsel and without counsel’s consent will be excluded from use upon [the] trial” (People v Rowell,
I do not agree with the majority’s finding, a finding not articulated by the hearing court, that the defendant did not invoke his right to the advice of counsel before making the decision to waive the privilege agаinst self-incrimination and the right to the assistance of an attorney (see, People v Esposito,
Use at the trial of the videotaped statement elicited by the